Appeals court orders Obama administration to disclose the legal theory behind program of assassination against Americans

The torture memos are a case in point. Someone in the Office of Legal Counsel writes a memo, which then gets distributed to other offices in the administration laying out the White House"s opinion of the correct interpretation of the law.

If a lowly peon has any questions about the work he’s been asked to do, his bosses can point to the memo and say “this has been vetted at the highest levels-- either do the work, confident that you will not be prosecuted, or ask to be reassigned.” Normally, OLC memos are less ethically problematic than “is it legal to maim or kill”, and simply ensures that certain decisions about the law are standardized, rather than being subject to the personal whim of each individual bureacrat. Like the OMB, it’s a tool for centralized control of the bureaucracy.

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Someone being John Yoo who justified torture for the Bush administration. Rather than being a war criminal or pariah, he is still treated like a legal rock star because he went to the right Ivy League schools. He is part of the social class where rules don’t apply and punishments are unthinkable.

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bybee was involved too, as were others

“Good Lawyer.”
See: Yoo Interview, Daily Show.

He makes the point that the only question he was asked and answered concerned exactly what level of cruelty could used in an interrogation before that cruelty became harsh enough to pass some watershed and be legally definable as torture.

Just another diffuser, diffusing responsibility, hired by the great diffusers, who work in the diffusion factory.


As I get older, I try to spend less time outraged (which is not to say accepting of injustice). While I really have no proof, I can’t help but feel that the constant, increasing background levels of cortisone – that are all the rage today – are more a part of the problem than the solution. When stress kicks in empathy turns off, and empathy seems sorely lacking in the world today.


Yes, outrage is the best way to get people to commit atrocities. People love the outrage so much they don’t even question the propaganda being used to wind them up.


Yoo famously said that we could torture and maim children. Addington is also called “Cheney’s Cheney.” Cheerful, prosperous, reassuring and looking nothing like a Sith Lord or death camp commandant.


On December 1, 2005, Yoo appeared in a debate in Chicago with Doug Cassel, a law professor from the University of Notre Dame. During the debate, Cassel asked Yoo,
“If the President deems that he’s got to torture somebody, including by crushing the testicles of the person’s child, there is no law that can stop him?”, to which Yoo replied “No treaty.” Cassel followed up with “Also no law by Congress—that is what you wrote in the August 2002 memo”, to which Yoo replied “I think it depends on why the President thinks he needs to do that.”[42][43]
On June 26, 2008, Yoo and David Addington, former counsel and chief of staff to Vice-President Dick Cheney, testified before the House Judiciary Committee in what became a contentious hearing on detainee treatment, interrogation methods, and the extent of executive branch authority.[20][44][45][46]

What makes genteel people like that scary is that there many extremists in this country that are actively fantasizing on mainstream right wing blogs about the day they can form death squads and purge their neighborhoods. They don’t need any urging or training - they just need to believe that they have permission.


This is precisely how it works. The President can ask advice from whomever he or she wants, including a lawyer. If the Congress doesn’t like the results, they can change the law or impeach the President. It’s not easy - because it’s not supposed to be easy. For the reason why, see: Lewinsky, Monica.

Agreed. The whole thing is totally Orwellian. The very notion of secret law is repellant to begin with, and when that secret law is used to justify the murder of people its downright horrifying. We might as well lose the pretense we live in a democracy (republic, whatever) and throw the constitution in the trash.

To me, the only reason a legal memo like the one in question is kept hidden is because the arguments it contains are utterly ridiculous and won’t pass the laugh test. OLC memos that “legalize” torture, or that argue for the Executive branch as judge, jury and executioner of American citizens can only exist as bizarro-world linguistic claptrap where the definitions of words are mangled beyond all recognition.

When Attorney General Holder gave a speech justifying these assassinations he kept referring to due process as something the Executive can provide on its own. He purposely, it seems, left off the “of law” part of the expression throughout the speech because if he’d included it every time he used the words “due process” it would blatantly illustrate the farcical nature of his argument. The Executive branch does not interpret the law, and cannot provide due process of law because that is the sole provenance of the judiciary. So he pretended that there was this thing called “due process” that is satisfied when the president and a few of his advisers sit in a private chamber and mark human beings for death. Due process, as defined historically and constitutionally, has absolutely no meaning in that context. Or more accurately, its meaning has been totally reversed, as if the right to habeas corpus is defined as the right of the government to disappear people. Its facially absurd, thoroughly corrupt and yes, evil. Rule of law no longer exists when words and legal concepts are stripped of their meanings, and if these precedents are left to stand for much longer they will only broaden and soon enough we won’t even be able to have the discussion we’re having now for fear of what the government will “legally” be able to do to us.


The Executive branch does not interpret the law, and cannot provide due process of law because that is the sole provenance of the judiciary.

Consider this. You can read the law, and interpret the law, and even consult a lawyer, in order to avoid being hauled into court. If your interpretation is wrong, a judge might tell you so, and that might be a humiliating, expensive, and uncomfortable process.

The OLC advises the executive branch on how to follow the law, and still carry out the President’s policy objectives. Normally, if the OLC (or for that matter, any part of the executive) is wrong, the affected parties bring suit and a judge decides, or Congress passes a law (with, or without the cooperation of the President) closing out this errant interpretation.

However, Congress and the courts abdicated their responsibilities, and the flaws in the OLC opinions were not challenged.

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Vial “originalists” like Scalia would point out the Constitution doesn’t explicitly state there is a right to habeas corpus or a right to vote in elections. But he also says there is “natural law” that nobody wrote that bans gay marriage.

I think the reasoning is that torture isn’t “cruel and unusual punishment” if there isn’t a conviction. So torturing people more or less randomly is OK.

These two observations combined make one despair.


Don’t forget that this is secret law, so who could possibly challenge it or know what to even challenge? And standing is also a tricky question as the courts have been requiring plaintiffs to show they are affected by the law they are challenging, which is of course almost impossible given that those affected are dead or on the run, and certainly can’t manage to appear in a US court.

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I see, so the government isn’t technically “punishing” someone if they haven’t been convicted before the torture begins, so it can’t be cruel and unusual. Nice one.

Well Obama has killed a few tens of people and Dufus murdered half a million Iraqis.

Kind of a difference there.

I believe the term, “banality of evil” applies here, just as it did to Adolf Eichmann. It is remarkably easy for some to justify the most horrible behavior, and it is equally distressing to see how easily the public accepts their “reasoning”.

...I can't help but feel that the constant, increasing background levels of cortisone -- that are all the rage today -- are more a part of the problem than the solution.

All emotion makes people less intelligent – less rational.

Anger is well known in this regard, likewise fear. Anger and fear eat up a lot of precious neural resources. Which is useful if you need to fight a lion, or out-compete Neanderthal; but at the cost of those resources not feeding the upper brain.

Again: all emotion. Consider love, and how stupid people act under its spell. Love makes people willingly do what they would not otherwise do. Which is great for stirring up the gene pool, but no damn good for clear thinking.

I’m not against fear, anger, love, etc. We are emotional creatures, this is life.

Hell, I like a touch of fear – I’m a thrillseeker – and who doesn’t like love?

But if we value intelligence, if we seek rational thought: calm down.

Don’t even be happy that you’re smart.

Just be smart.

The entire concept of a “secret legal theory” is pretty insane…

I believe that the legal foundation for it was inspired by Dean Vernon Wormer:

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Or perhaps more accurately, our needs as a nation are monstrous. Difficult to do, but perhaps the USA needs to grow up a bit, and socially evolve a bit.